Kissinger v. Board of Trustees of Ohio State University, College of Veterinary Medicine, 92-3360

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 5 F.3d 177
• Docket Number: No. 92-3360,92-3360
• Parties: 85 Ed. Law Rep. 999 Jennifer KISSINGER, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the OHIO STATE UNIVERSITY, COLLEGE of VETERINARY MEDICINE, et al., Defendants-Appellees.
• Decision Date: 23 September 1993

Page 177

5 F.3d 177 85 Ed. Law Rep. 999 Jennifer KISSINGER, Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF the OHIO STATE UNIVERSITY, COLLEGE of
VETERINARY MEDICINE, et al., Defendants-Appellees. No. 92-3360. United States Court of Appeals,
Sixth Circuit. Argued Nov. 16, 1992.
Decided Sept. 23, 1993.

Page 178

Kathaleen B. Schulte (argued), Spater, Gittes, Schulte & Kolman, Columbus, OH, Gary L. Francione (briefed), Rutgers University Law School, Newark, NJ, for plaintiff-appellant.

James E. Pohlman (briefed), Kathleen M. Trafford (argued), Porter, Wright, Morris & Arthur, Columbus, OH, for defendants-appellees.

Before: KENNEDY, MARTIN, and SUHRHEINRICH, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Jennifer Kissinger appeals the district court's refusal to award attorneys' fees under 42 U.S.C. Sec. 1988. She sued Ohio State University to force a change in its veterinary-medicine curriculum, but the parties reached a settlement. We affirm the district court's refusal to award attorneys' fees because Ohio State was not required by federal law to alter its curriculum to accommodate Kissinger's religious beliefs.

Jennifer Kissinger enrolled in the College of Veterinary Medicine at Ohio State University. When she was admitted, the Admission Acceptance Form stated,

The faculty of the College of Veterinary Medicine believe that the use of live animals in the teaching program is essential. The use of animals is reviewed by a faculty committee, which considers the issues of humane treatment, animal rights, learning experience and achievement of educational objectives. Objection to the use of live animals will not be grounds for excuse from class.

During the second year of her training, Kissinger requested that the College allow her to take an alternate program to the College's required course in veterinary surgery, Operative Practice and Techniques, a third-year course. Operative Practice is a course for the study of veterinary surgical techniques in which, among other learning activities, healthy animals are anesthetized, operated upon, and then killed. On May 5, 1990, Kissinger, because of her religious beliefs, asked the faculty to create an alternative curriculum for her to fulfill the surgical requirement. On June 27, 1990, Kissinger was told that a committee had been established to develop an alternative to Operative Practice.

On August 29, 1990, having heard nothing from the College about the alternate curriculum, Kissinger requested that the curriculum be modified to accommodate her religious beliefs. The College refused Kissinger's request. Kissinger enrolled in her third-year classes, but refused to participate in the laboratory portion of Operative Practice. On October 6, 1990, the College told Kissinger that she could withdraw from Operative Practice, which meant that she could not continue with subsequent courses and that she would be required to petition for readmission to the College.

Kissinger contends that she was ridiculed by the faculty and told not to "make waves" during the course of her efforts to be allowed to take an alternative curriculum.

Page 179

Kissinger sued the College. Her lengthy complaint stated fifteen grounds for relief, including state common-law theories, state constitutional theories, and seven claims under 42 U.S.C. Sec. 1983. Kissinger claimed that the College violated her rights under the United States Constitution, including her freedom of speech, freedom of association, freedom of religion, and her rights to due process and equal protection. In addition, Kissinger claimed that the College violated her statutory right to privacy concerning her academic records under 20 U.S.C. Sec. 1232g.

On January 24, 1991, the College issued an alternative curriculum for Kissinger. Kissinger objected to parts of the alternative curriculum, but a settlement was eventually reached. Kissinger then petitioned for attorney's fees under 42 U.S.C. Sec. 1988, and the district court rejected Kissinger's petition. We affirm the district court's decision.

Under 42 U.S.C. Sec. 1988, district courts have the discretion to award attorneys' fees to a "prevailing party" in a suit arising under 42 U.S.C. Sec. 1983. Although the statute states that the award of attorneys' fees is discretionary, they should normally be granted if a plaintiff prevails. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). When a plaintiff files suit under section 1983 and reaches a settlement with the defendant, the plaintiff may be entitled to attorneys' fees as a prevailing party. Johnston v. Jago, 691 F.2d 283, 286 (6th Cir.1982). For a party to a settlement to be considered a prevailing party, the party must: (1) receive the redress as a result...